[Congressional Record Volume 158, Number 41 (Tuesday, March 13, 2012)]
[Senate]
[Pages S1586-S1589]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I listened with interest to the colloquy 
between my two friends, the distinguished majority and minority 
leaders. It is almost--and I think the American people see it as 
almost--a kabuki dance because the fact is, the majority leader is 
right to seek votes on these district court nominees. He seeks to 
secure Senate votes for 17 highly qualified Federal district court 
nominations favorably reported by the Judiciary Committee. They are 
being blocked by Senate Republicans.
  I wish we could find a way to stop these damaging filibusters. They 
are totally unprecedented. It is greatly damaging the most respected 
court system in the world: our Federal court system. That means 
Americans are not getting the justice without delay they are entitled 
to. We must work together to ensure that the Federal courts have the 
judges they need to provide justice for all Americans without needless 
delay.

[[Page S1587]]

  Federal district court judges are the trial court judges who hear 
cases from litigants across the country and preside over Federal 
criminal trials, applying the law to facts and helping settle legal 
disputes. They handle the vast majority of the caseload of the Federal 
courts and are critical to making sure our Federal courts remain 
available to provide a fair hearing for all Americans. Nominations to 
fill these critical positions, whether made by a Democratic or 
Republican President, have always been considered with deference to the 
home state Senators who know the nominees and their states best, and 
have always been confirmed quickly with that support.
  I have been here 37 years, with Republican Presidents, Democratic 
Presidents, Republican majorities, Democratic majorities. Never in 
those 37 years have we seen district court nominees blocked for months 
as we have seen since President Obama was elected.
  These kinds of consensus nominees are normally taken up within a few 
days or a week after being nominated and voted out of our Judiciary 
Committee, whether nominated by a Democratic or a Republican President. 
It was certainly the approach taken by Senate Democrats when President 
Bush sent us consensus nominees. As a result, we were able to reduce 
vacancies in the Presidential election years of 2004 and 2008 to the 
lowest levels in decades. That was also how we confirmed 205 of 
President Bush's judicial nominees in his first term.
  For those who want to understand where the partisanship is, here is a 
little bit of history. For 31 months of the first 48 months of 
President Bush's first term, Republicans controlled the Senate, and for 
17 months, Democrats controlled the Senate. To show that we wanted to 
set aside partisanship, in our 17 months that we were in control, 
Senate Democrats helped confirm 100 of President Bush's nominees. In 
the 31 months Republicans were in charge, they did 105, which was 
slightly more nominees. But the fact is, we actually moved a lot faster 
on President Bush's nominees than the Republicans did.
  I was chairman of the committee, and I tried to do that to get us 
away from what we had seen where Republicans had pocket-filibustered 60 
of President Clinton's nominees. I wanted to get back to where we took 
politics out of the Federal courts.
  But we have seen now a complete reversal of this. Senate Republicans 
have ensured that nominees who in the past would have been confirmed 
promptly by the Senate are now blocked for months. An unprecedented 
number of President Obama's highly qualified men and women to district 
courts has been targeted for opposition and obstruction while extreme 
outside groups tar their records and reputations with invented 
controversies. It is unprecedented and it hurts our system of justice 
in this country.
  Two weeks ago, at a meeting of the Senate Judiciary Committee, the 
Senator from Utah conceded that a ``new standard'' is being applied to 
President Obama's nominations. He was saying out loud what has been 
apparent from the start of President Obama's term--that Republican 
Senators have applied a different and unfair standard to President 
Obama's judicial nominees.
  I was here with President Ford, President Carter, President Reagan, 
President George H.W. Bush, President Clinton, President George W. 
Bush, and now President Obama. I can attest that Republicans have set a 
different standard for President Obama than has been applied to any of 
the other Presidents I have known since I have been here. I have to ask 
myself, what is so different about this President that he is treated to 
a different, tougher standard than any of the Presidents before him? I 
just ask. President Obama's district court nominees have been forced to 
wait more than four times as long to be confirmed by the Senate as 
President Bush's district court nominees at this point in his first 
term, taking an average of 93 days after being voted on by the Senate 
Judiciary Committee.
  When I hear Republican Senators claim there is no obstruction and 
there is no reason for the majority leader to push for votes on these 
nominations, I wonder if they have looked at our recent history.
  I spoke of President Bush's first term. Mr. President, 57 of his 
district court nominations were confirmed within 1 week of being 
favorably reported by the Judiciary Committee--1 week. In stark 
contrast to those 57, only 2 of President Obama's district court 
nominations have been confirmed within 1 week of being reported--less 
than one twenty fifth the number of President Bush's. More than half of 
the nominations for which the leader has now filed cloture have been 
pending since last year--many months, not days. This must be the new 
standard the Senator from Utah has said Senate Republicans are using 
for President Obama's nominations--a different standard than all the 
Presidents before him. I will at least praise the Senator from Utah for 
his honesty.
  Indeed, 10 of the nominations on which the Majority Leader has been 
required to file cloture in order to end the Republican filibuster and 
get a vote have been awaiting a vote since last year. Nine of them had 
the support of every Republican as well as every Democratic Senator 
serving on the Judiciary Committee. They all should have been 
considered and confirmed last year.
  I understand and share the Majority Leader's frustration. He has been 
unable to obtain the usual cooperation from the minority to schedule 
debates and votes on these widely supported, consensus nominees. I 
regret that the Majority Leader has been forced to take this action but 
the millions of Americans seeking justice in their courts should not be 
forced to wait any longer.

  To understand how unusual and wrongheaded this is, consider the 
following: Republicans are opposing judicial nominees they support. 
They are stalling Senate action for weeks and months on judicial 
nominees who they do not oppose and who they vote to confirm once their 
filibuster can be ended and the vote scheduled. That is what happened 
after a four-month filibuster when the Senate finally voted on the 
nomination of Judge Barbara Keenan. That is what happened when after a 
five-month filibuster, the Senate finally voted on the nomination of 
Judge Denny Chin. Once the Republican filibusters were ended, they were 
confirmed unanimously. That is what happened after an eleven-month 
delay before confirmation of Judge Albert Diaz of North Carolina. That 
is what happened after seven-month delays before confirmations of Judge 
Kimberly Mueller of California, Judge Catherine Eagles of North 
Carolina, Judge John Gibney, Jr. of Virginia, and Judge Ray Lohier of 
New York. That is what happened after six-month delays before the 
confirmations of Judge James Bredar and Judge Ellen Hollander of 
Maryland; Judge Susan Nelson of Minnesota, Judge Scott Matheson of Utah 
and Judge James Wynn, Jr. of North Carolina. That is what happened 
after five-month delays before confirmations of Judge Nannette Brown of 
Louisiana, Judge Nancy Torresen of Maine, Judge William Kuntz of New 
York, and Judge Henry Floyd of South Carolina. This is what happened 
after four-month delays before the confirmations of Judge Edmond Chang 
of Illinois, Judge Leslie Kobayashi of Hawaii, Judge Denise Casper of 
Massachusetts, Judge Carlton Reeves of Mississippi, Judge John Ross of 
Missouri, Judge Timothy Cain of South Carolina, Judge Marina Marmolejo 
of Texas, Judge Beverly Martin of Georgia, Judge Joseph Greenaway of 
New Jersey, Judge Mary Murguia of Arizona, and Judge Chris Droney of 
Connecticut.
  So, too, I expect the district court nominee to fill a judicial 
emergency vacancy in Utah, supported by Senator Hatch, will not be 
controversial once the vote takes place. The district court nominees to 
fill judicial emergency vacancies in Texas, supported by Senator 
Hutchison and Senator Cornyn, should easily be confirmed. The nominees 
to judicial emergency vacancies in Illinois supported by Senator Kirk, 
should not be controversial. The district court nominee in Louisiana 
supported by Senator Vitter, should not be controversial. The district 
court nominee in Missouri supported by Senator Blunt, should not be 
controversial. The district court nominee in Arkansas supported by 
Senator Boozman, should not be controversial. The district court 
nominee in Massachusetts supported by Senator Brown, should not be 
controversial. The district court nominee

[[Page S1588]]

in South Carolina supported by Senator Graham, should not be 
controversial. The district court nominee in Ohio supported by Senator 
Portman, should not be controversial.
  Senate Democrats never applied this standard to President Bush's 
district court nominees, whether we were in the majority or the 
minority. During his eight years in office, President Bush saw only 
five of his district court nominees have any opposition on the floor 
and that opposition had to do with doubts about those nominees' 
suitability to be Federal judges. After only three years, 19 of 
President Obama's district court nominees have already received 
opposition. Even though President Obama has worked with Republican and 
Democratic home state Senators to identify highly-qualified, consensus 
nominees, his district court nominees have already received more than 
five times as many ``no'' votes in three years as President Bush's 
district court nominees did in his eight years over his two terms. This 
is further proof of the Republicans' new standard.
  I find that reprehensible. It means President Obama's nominees are 
being treated differently than any Presidents, Democratic or 
Republican, before him. It is no accident that 1 out of every 10 
Federal judgeships remains vacant in the fourth year of President 
Obama's first term. It is not happenstance that judicial vacancies are 
nearly double what they were at this point in President Bush's first 
term. The extended crisis in judicial vacancies is the result of 
deliberate obstruction and delays by Senate Republicans.
  A few years after Republican Senators insisted that filibusters of 
President Bush's judicial nominees were unconstitutional, they reversed 
course and filibustered President Obama's very first judicial 
nomination, that of Judge David Hamilton of Indiana, a widely-respected 
15-year veteran of the Federal bench who had the support of the most 
senior and longest-serving Republican in the Senate, Senator Lugar. The 
Senate rejected that filibuster and Judge Hamilton was confirmed, but 
the pattern of partisan obstruction of President Obama's judicial 
nominees was set from the very start.
  That is wrong--that is wrong--and that is turning your back on a 
majority of Americans who voted for President Obama in the last 
election, Americans from all across the country, of all backgrounds, of 
all races, of all religions--to turn your back on them by saying: You 
may have elected him, but we are going to hold him to a different 
standard. It is wrong.
  At the end of each of the last two years, the Senate Republican 
leadership continued this obstruction by ignoring long-established 
precedent and refusing to agree to schedule votes on dozens of 
consensus judicial nominees before the December recess. Last year it 
took us until June to confirm nominees who should have been confirmed 
in 2010. This year we have had to end two more of the nine Republican 
filibusters of President Obama's judicial nominations to confirm 
nominees who should have been confirmed the year before and fully a 
dozen judicial nominees from last year remain to be considered. And 
here we are in the middle of March, having to fight to hold votes on 10 
district court nominees who should have been confirmed last year.
  This obstruction is purposeful and it is damaging. The people who 
bear the brunt of this Republican obstruction are the American people. 
The result of the Senate Republicans' obstruction is that the ability 
of our Federal courts to provide justice to Americans around the 
country is compromised. Millions of Americans, who are in overburdened 
districts and circuits, experience unnecessary delays in having their 
cases resolved. Nearly one hundred and sixty million Americans live in 
districts or circuits that have a judicial vacancy that could be filled 
today if Senate Republicans would just agree to vote on the nominations 
now pending on the Senate calendar. It is wrong to delay votes on 
qualified, consensus judicial nominees.

  Our courts need qualified Federal judges, not vacancies, if they are 
to reduce the excessive wait times that burden litigants seeking their 
day in court. It is unacceptable for hardworking Americans who turn to 
their courts for justice to suffer unnecessary delays. When an injured 
plaintiff sues to help cover the cost of his or her medical expenses, 
that plaintiff should not have to wait three years before a judge hears 
the case. When two small business owners disagree over a contract, they 
should not have to wait years for a court to resolve their dispute.
  When Senate Democrats opposed some of President Bush's most 
ideological nominees, we did so openly, saying why we opposed them. At 
the same time, we continued to move consensus nominees quickly so they 
could begin serving the American people. That is what I did as Chairman 
for 17 months during the first two years of the Bush administration and 
how we were able to lower judicial vacancies by confirming 100 of his 
circuit and district court nominees. That is how we reduced vacancies 
in the presidential election years of 2004 and 2008 to the lowest 
levels in decades, half of what they are now. That is how we had 
already confirmed 172 of President Bush's circuit and district nominees 
by this point in his first term, as compared to only 131 of President 
Obama's and being 40 confirmations and nine months behind the pace we 
set then. We did so because we put the needs of the American people 
before partisanship and obstruction.
  We had another discussion of these matters in the Senate Judiciary 
Committee two weeks ago. Senator Coburn said that this is ``exactly 
what makes Americans sick of what we are doing.'' I agree. I have been 
saying for some time that this needless obstruction is what has driven 
approval ratings of Congress down to single digits. The Senator from 
Oklahoma observed that it would behoove us all to get back to the days 
when these lower court judicial nominations were not areas of partisan 
conflict. I agree. I have tried to do my part in that regard by 
treating Republican Senators fairly and protecting their rights. 
President Obama has done his part by consulting with Republican home 
state Senators and selecting moderate, well-qualified nominees. It is 
time for Senate Republicans to do their part and not abuse their rights 
under our Senate rules and procedures. It is time for them to end the 
partisan stalling. It is time for Senate Republicans to agree to 
schedule votes on these long-delayed and much-needed judges.
  Once we have overcome these unprecedented filibusters of President 
Obama's district court nominations, I hope that it will not take more 
delays and more cloture petitions to end the filibusters against the 
five outstanding nominees by President Obama to fill vacancies on our 
Federal circuit courts. Two delayed from last year are outstanding 
women: Stephanie Dawn Thacker of West Virginia, nominated to the Fourth 
Circuit, and Judge Jacqueline Nguyen of California, nominated to fill 
one of the many judicial emergency vacancies on the Ninth Circuit. Ms. 
Thacker, an experienced litigator and prosecutor, has the strong 
support of her home state Senators, Senators Rockefeller and Manchin. 
Judge Nguyen, whose family fled to the United States in 1975 after the 
fall of South Vietnam, was confirmed unanimously to the district court 
in 2009 and would become the first Asian Pacific American woman to 
serve on a U.S. Court of Appeals. Last week, The Sacramento Bee ran an 
editorial about Judge Nguyen's nomination that noted that ``for those 
of us in the real world particularly those seeking justice in the 
federal courts--it would be far, far better if these qualified jurists 
could get to work.'' I will ask unanimous consent that the article be 
printed in the Record. Both Ms. Thacker and Judge Nguyen were reported 
unanimously by the Judiciary Committee last year and both should be 
considered and confirmed by the Senate without additional damaging 
delays.
  I hope Republicans and Democrats can join together to put an end to 
this damaging pattern of obstruction and filibusters. It hurts our 
Federal courts. It is a disrespect to the President of the United 
States. It goes way beyond partisanship. But it is wrong, and it 
demeans this great body we are all privileged to serve in. This is the 
sort of thing I never thought I would see in the Senate of the United 
States. I say that based on 37 years of experience with Senators I have 
admired and have publicly stated I have admired in both

[[Page S1589]]

parties. This is wrong. Let's go back and let the Senate be the 
conscience of the Nation, not a body that reflects some of the worst 
instincts of our Nation.
  I ask unanimous consent that the article to which I refereed be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Sacramento Bee, Mar. 6, 2012]

                 Justice Delayed as Judge Nominees Wait

       Republicans in the U.S. Senate are once again using 
     President Barack Obama's judicial nominations as pawns in 
     their political chess match.
       There's even loose talk of putting off votes as long as 
     possible, in hopes that Obama loses in November and the seats 
     can be filled by a Republican president.
       That's absurd.
       There are too many vacancies on federal courts in 
     California and other states, where there aren't enough judges 
     to handle the caseloads. Too often, justice delayed really is 
     justice denied.
       Democratic leader Harry Reid of Nevada is apparently so fed 
     up that he's willing to go to war to get confirmation votes 
     on the Senate floor, Politico reports.
       Good for him. The Republicans deserve to be called out on 
     their obstructionism--and their hypocrisy, since they often 
     complain about how slow the federal courts are.
       The focus is on 14 qualified nominees who won bipartisan 
     support in the Senate Judiciary Committee, including two from 
     California who were unanimously approved but have been on 
     hold for months.
       One is Jacqueline Nguyen of Los Angeles, who was nominated 
     by Obama last September for the 9th U.S. Circuit Court of 
     Appeals and endorsed by the judiciary panel on Dec. 1. The 
     first Vietnamese-American woman to serve as a federal judge, 
     she was 10 when her family fled Vietnam at the end of the 
     war. They started as refugees in Camp Pendleton and made 
     their own version of the American Dream.
       The second is Michael Fitzgerald, who was nominated last 
     July for a judgeship in the Central District of California 
     and received committee approval on Nov. 3. A Los Angeles 
     attorney and former federal prosecutor, he would become the 
     first openly gay federal judge in the state and the fourth 
     nationwide.
       Both those courts are in an official ``judicial emergency'' 
     because cases are so backed up.
       There are two more recent nominations for 9th Circuit seats 
     that have gone through the Judiciary Committee. Paul Watford, 
     a Los Angeles attorney and former prosecutor, was approved on 
     a 10 6 vote on Feb. 2. Andrew Hurwitz, an Arizona Supreme 
     Court justice, was approved on a 13 5 vote Thursday.
       The San Francisco-based 9th Circuit is a particular target 
     for Republicans, who like to rail against what they call its 
     liberal, activist bent. Their delaying tactics succeeded in 
     forcing Goodwin Liu, a highly regarded UC Berkeley law 
     professor who grew up in Sacramento, to withdraw his 
     nomination last July. (Gov. Jerry Brown then nominated him to 
     the California Supreme Court, where Liu now serves.)
       It must be said that there are also political advantages 
     for Obama if the delays continue. It would give him more 
     ammunition to campaign against a ``do-nothing Congress.'' 
     Given the ways of Washington, that may be the most likely 
     scenario.
       But for those of us in the real world--particularly those 
     seeking justice in the federal courts--it would be far, far 
     better if these qualified jurists could get to work.

  Mr. LEAHY. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. Will the Senator suspend?
  Mr. LEAHY. Yes.

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